The Texas Real Estate Commission (TREC) adopts amendments to §535.220, Professional Conduct and Ethics, in Subchapter R of Chapter 535, General Provisions, without changes to the proposed text as published in the March 12, 2021, issue of the Texas Register (46 TexReg 1595). The rule will not be republished.

The amendment adds that the consent an inspector must receive from the inspector's client to receive a fee or other valuable consideration for referring services that are not settlement services or other products to the client, must be in writing.

The amendment was recommended by the Texas Real Estate Inspector Committee.

Twenty-two comments were received. Ten were in support of the proposed change. Five disagreed with the proposed change citing general disagreement, concerns related to referral fees and the Real Estate Settlement Procedures Act (RESPA), writing style, and concerns regarding potential loopholes and possibility of abuse of this provision by inspectors. The Texas Real Estate Inspector Committee reviewed these comments and determined the concerns raised did not merit any changes to the rule as proposed as the requirement to put in writing the consent to receive a fee or other valuable consideration for referring services that are not settlement services enhances clarity and transparency as related to the transaction, which is in the interest of both the consumer and the inspector. Additionally, concerns related to RESPA were not considered relevant as the provision is not related settlement services. Six neutral comments were received related to RESPA, reasons for making the change, and whether the Commission would be creating a form in response. The Texas Real Estate Inspector Committee addressed these concerns in its meeting, again noting there were no concerns related to RESPA because the change was unrelated to settlement services and further noting the written requirement did not require a form be created and that the rule change was initiated in an attempt to create greater clarity between the parties involved.

The Commission declined to make any changes for the same reasons given by the Texas Real Estate Inspector Committee and because the requirement to have the consent be in writing creates greater transparency and better understanding between the parties involved.

The amendment is adopted under Texas Occupations Code §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce rules necessary to administer Chapters 1101 and 1102; and to establish standards of conduct and ethics for its license holders to fulfill the purposes of Chapters 1101 and 1102.